Supreme Court in 2004 will Expand or Shrink the Power of the President

[Q]The U.S. Supreme Court and The Imperial Presidency
How President Bush Is Testing the Limits of His Presidential Powers
By JOHN W. DEAN
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Friday, Jan. 16, 2004

Can the President of the United States arrest any American he suspects of being a terrorist and toss him in a military brig, deny him a lawyer, omit to bring any charges against him -- yet indefinitely keep him imprisoned nonetheless?

Can the President kidnap foreigners charged with violating federal law, and bring them to the United States to stand trial? How about Osama bin Laden, for starters?

These are only a few of the issues raised by cases now pending before the U.S. Supreme Court that will examine the limits of presidential powers. As David Savage, the legal writer for the Los Angeles Times, has noted, this is a remarkable collection of cases.

"[T]he justices have voted to take up five cases that test the president's power to act alone and without interference from Congress or the courts," Savage explains. The description of these cases, as Savage has ably summarized them, is startling: "They involve imprisoning foreign fighters at overseas bases, holding American citizens without charges in military brigs, preserving the secrecy of White House meetings, enforcing free-trade treaties despite environmental concerns, and abducting foreigners charged with U.S. crimes."

What the Supreme Court has placed on its agenda, in short, is the Imperial Presidency -- that is, the Presidency in which the Executive largely acts alone, pushing the Constitution to the limits and beyond. And how the Justices deal with this overwhelmingly important topic could affect the reelection prospects of the Bush presidency, for, as David Savage notes, at least four of the five rulings are anticipated to be handed down during the summer of 2004 -- right in the middle of the presidential campaign.

As I noted at the start of this column, it has been three decades since the Court will have tackled such important presidential power questions -- with such potential political implications for a presidential race. For that reason, the five cases that raise these questions should be on the radar screen of all president -- and Supreme Court -- watchers.

The cases are:

Sealed Case. A case so secret it does not appear on the Court's docket, and the Solicitor General simply refers to it as "this matter … that is required to be kept under seal." In fact, it is not all that secret. It involves Mohamed Kamel Baellahouel, who wants the Court to rule on whether he was improperly secretly jailed. The government want to argue its case in secret. But some twenty news organizations are opposing this extreme secrecy.

Hamdi v. Rumsfeld. This case raises the rights of an American citizen -- Yaser Hamdi -- who was captured overseas and held in the United States as an "enemy combatant." Hamdi was arrested in Afghanistan.

Rasul v. Bush, and Al Odah v. United States. These cases address the habeas corpus rights of aliens detained at the U.S. base in Guantanamo Bay, Cuba. The government is maintaining that these aliens do not have the right to file habeas corpus petitions in U.S. federal courts.

Padilla v. Rumsfeld. This case involves Jose Padilla, a U.S. citizen who is being held indefinitely, in a military prison, as an "enemy combatant." He was arrested when deplaning in Chicago. (Thus, his case may be treated differently from that of Hamdi, who was arrested abroad, in Afghanistan.) The Second Circuit, in a 2-1 ruling, held that Padilla's detention violated the Non-Detention Act of 1971, which asserts that no citizens may be held by the federal government "except pursuant to an act of Congress." The Government is appealing, claiming that the President has power to unilaterally cause such detentions to occur.

Cheney v. Judicial Watch and Sierra Club. This case involves the right of the vice president (and, by implication, of the president) to refuse to turn over documents in a civil lawsuit. The suit seeks to determine if Cheney violated the Federal Advisory Committee Act (the law that forced First Lady Hillary Clinton to open up her sessions on health care). [/Q]

The rest of the article is well worth the read. Bush is more like Nixon according to John Dean. Actually, he has expanded the power of the presidency more than Nixon. The Supreme Court put Nixon back into his place. It will be interesting to see if the Supreme Court will do so to this President.

I find it interesting, Dread, that you posted this article. It seems to me that this article is critical of the President's actions. Other persons here have made the charge that Bush is dangerous, largely for the reasons enumerated above, and you don't seem to buy that. On the other hand, we have this article which clearly spells out abuses, or soon-to-be abuses, of power within the Bush administration.

Just to be clear, I have no problem with Osama bin Laden being brought to trial if he's ever caught; I think it should happen in an international setting, because the U.S. isn't the only nation involved in the "war on terror," but of course I believe he should be brought to trial. And I would have no problem with Al-Qaeda members being held as POWs in accordance with the Geneva Convention. But I do happen to think that the longer the U.S. flouts international standards for law and justice, the more other countries will feel free to do so as soon as those standards become inconvenient for them.

I know I'm going to get flamed for this, but I don't know how that article doesn't prove that Bush wants to expand the powers of the executive branch WELL beyond the limits of the Constitution. How seriously, then, does he take his oath to defend the Constitution?

I have never been so excited about voting in my life.

__________________and you hunger for the time
time to heal, desire, time

Bush has not done anything different from Presidents Lincoln and Rosevelt in regards to the detentions of individuals in a time of war. We all know how members of Al Quada and Bin Ladin would vote on this issue if they could.

Originally posted by paxetaurora
I have never been so excited about voting in my life.

Word.

And if the primaries turn-out is anything to judge by, you're not alone by a long shot. I'm planning to help the VA DNC register and drive people to the polls who wouldn't be able to vote otherwise. I want to do all I can.

Originally posted by STING2 Bush has not done anything different from Presidents Lincoln and Rosevelt in regards to the detentions of individuals in a time of war. We all know how members of Al Quada and Bin Ladin would vote on this issue if they could.

So are you trying to say that those who support the limiting of the President's power are now aiding the Al Quaida?

Originally posted by STING2 Bush has not done anything different from Presidents Lincoln and Rosevelt in regards to the detentions of individuals in a time of war. We all know how members of Al Quada and Bin Ladin would vote on this issue if they could.

Then again, Lincoln and Roosevelt were president before the UN (with their declarations on Human Rights and POW's) even existed.

Originally posted by STING2 Bush has not done anything different from Presidents Lincoln and Rosevelt in regards to the detentions of individuals in a time of war. We all know how members of Al Quada and Bin Ladin would vote on this issue if they could.

But there's one problem with this statement: we're not in a time of war. No war has been officially declared by Congress since World War II. Call it whatever you want, but this is not a "time of war." Being in a constant state of siege, like the incorrectly named "Cold War," is not a "time of war." Since you're so good on technicalities like UN Resolution 1441, I'm sure you'll understand the problems in your logic.

Giving the executive branch such unparalleled power runs contrary to the ideals that founded this nation. We're a republic with distinct separation of powers to prevent any branch of government, including the executive branch, from overstepping its boundaries and turning this nation into an autocratic quasi-monarchy.

This is not like World War II; this is more like the Cold War: a state of siege that is mostly based on fear and the potential for conflict. I trust that the Supreme Court will not cheapen itself by handing the executive branch powers that it was never intended to have.

And bringing up the specters of bin Laden and Al-Qaeda? How presidential of you, but undermining our democracy in favor of dictatorial decrees is precisely how I'd imagine they'd vote.

This is not like World War II; this is more like the Cold War: a state of siege that is mostly based on fear and the potential for conflict. I trust that the Supreme Court will not cheapen itself by handing the executive branch powers that it was never intended to have.

And bringing up the specters of bin Laden and Al-Qaeda? How presidential of you, but undermining our democracy in favor of dictatorial decrees is precisely how I'd imagine they'd vote.

Melon

Welcome back.

__________________and you hunger for the time
time to heal, desire, time

Originally posted by paxetaurora I find it interesting, Dread, that you posted this article. It seems to me that this article is critical of the President's actions. Other persons here have made the charge that Bush is dangerous, largely for the reasons enumerated above, and you don't seem to buy that. On the other hand, we have this article which clearly spells out abuses, or soon-to-be abuses, of power within the Bush administration.

Pax, I think that historically Presidents always try and get away with what they can as far as expanding their power. they each have done a bit in their own way.

I would agree with you, that I have defended the Presidents actions more often than not in this forum, however, I have been fairly consistent in my belief that through the democratic process and voting we can change what we do not like. The Patriot Act is not permanent. The Patriot Act II has not passed. There is a process. The Supreme Court has already started to rule on some of the cases and against the administration. It proves what I believe in my heart, that the system of checks and balances, will in the long run always even itself out. It may not always be as fast as we would like it too, but the system in general works.

As for the President, if the administration is wrong in its actions, so be it. I would rather them be wrong and test the boundaries of the law, than to be wrong and not know the limits of the law in the climate we live under today. Some do not feel this way. I can respect that, and once again, the system through voting, and the courts will weed it all out.

A historical example of what I am thinking of would be Robert Kennedy having the FBI grab Mafia Godfather Carlos Marcello in New Orleans and having him illegally deported to Guatemalla and dumped in the middle of the jungle. This happened. It is not fiction, nor is it conspiracy crap. Marcello got back into the US and won his case against the Government. The FBI had no business doing that to him.

Another Kennedy example would be Kennedy using the FBI to gather personal information on the owners and executives of the major Steel Corporations. He used this information to blackmail them into sticking to an agreement to "fix" the price of steel. If they had not gone along with it, he was worried about the economy and his chances for reelection. Power of the President...abuse of power? Dirty Tricks? or Good for the Country?

One other point Pax.....I grabbed this from a Law site. I did not get it from an editorial, or a propaganda site that was equating Bush to Hitler. Something I find so offensive for personal reasons it sickens me that it is still allowed that articles can be posted like that in this forum. Deep down, maybe they are saying the same thing....the Executive Branch is expanding its powers. One however says it without offending people who may have a connection to that period in history due to religion, loss of a loved one, or maybe even because a family member had nightmares until the day they died from cleaning up a concentration camp.

Yes I posted it....I anticipate the Supreme Court finding that the executive branch has exceded its authority.

Melon....I think you make an excellent point....can you declare war against a group that is not a country? I am curious. I have argued in here that a formal declaration of war should have been made for Iraq....and I am not sure constitutionally if it is possible to declare war against a group of people.